…is it worth litigating on the basis of principle irrespective of the costs involved? Is it worth litigating even though it may take more than a decade to reach finality? These are just two of many questions that you should ask yourself before entering into litigation proceedings.

 

There is a stigma associated with litigation because of the length of procedures, the costs involved and even the relationships that are affected after the whole legal process. There are situations where you might have no other option but to litigate. However, you need to ask yourself what is more important when trying to find a resolution to your issue.

 

There are many alternative dispute resolutions that may be utilized to achieve the same result as litigation. The most common and cost-effective alternative is mediation. Mediation is a more informal platform which allows for every party to be heard and to reach a more favourable settlement between both parties. A third party is appointed, known as the mediator, who mediates between both parties and attempts to narrow the issues to reach settlement.

 

Many people think of mediators as playing the same role as arbitrators. Arbitrators hear both parties and make a ruling based on the facts placed before them, which ruling is binding on the parties. Mediation on the other hand provides a platform to negotiate and discuss matters and reach a settlement between each other whilst being guided and assisted by the mediator.

 

Mediation is beneficial because it is quicker and can last up to days or weeks compared to litigation which may take months or years. The process is less expensive and remains confidential between all parties involved. Lastly, mediation allows for preservation of relationships between parties that may be ruined in the process of litigation.

 

The following are situations where mediation may be a favourable option before initiating litigation proceedings:

  • Divorce proceedings where children below 18 years old are involved;
  • Agreements that make provision for mediation as a pre-requisite;
  • Business issues that are run with family or friends;
  • Not enough funds to litigate; or
  • Complex matters that may take a long period to litigate.

 

Mediation may not always provide a positive outcome and you may be required to litigate to seek a remedy. However in many cases it is a more feasible option.

The choice to mediate or litigate is entirely up to the client which is why it’s important to approach your attorney and have him/her explain the advantages and disadvantages of mediating before litigation.

 

JILLIAN SAN PEDRO works in the Litigation Department at Alan Levy Attorneys Notaries and Conveyancers. Jillian can be contacted on enquiries@alattorneys.co.za or 011 326 8050.